Excerpt:.....summons along with a copy of the plaint was tendered to him and that upon his refusal the process-server affixed a copy of the summons along with a copy of the plaint on a conspicuous part of his house as required by order v, rule 17, civil p. the addresses of those two persons, namely, heera lal and radhey shyam were not mentioned in the report for reasons best known to the process-server. it is the bounden duty of the process-server to return the original summons to the court from which it was issued with a report endorsed thereon or annexed thereto stating that he has affixed a copy of the summons on the outer door or some other conspicuous part of the house in which the defendant ordinarily resides or carries on business or personally works for gain. on account of the failure of the..........summons along with a copy of the plaint was tendered to him and that upon his refusal the process-server affixed a copy of the summons along with a copy of the plaint on a conspicuous part of his house as required by order v, rule 17, civil p. c. later on, the court passed an ex parte decree against the petitioner on 13-10-1968. the petitioner filed an application under order ix, rule 13, civil p. c. for setting aside the ex parte decree on 29-11-1968. it was alleged in the application that he never refused to accept the summons and to acknowledge the service and that a copy of the summons was never affixed on a conspicuous part of his house. the learned munsiff, jaipur city (east) made an inquiry into the matter and came to a conclusion upon evidence of roop narain, process-server,.....

Judgment:ORDER

Kalyan Dutta, J.

1. This is an application in revision against an order of the Additional District Judge No. 3, Jaipur City, dated 28-7-1975, confirming the order of the Munsiff, Jaipur City (East) dated 5-4-1974, by which the application of the petitioner for setting aside ex parte decree was rejected.

2. The short facts, which are necessary for the disposal of this revision-petition, may be stated as follows:--

Mst. Lalli Bai instituted a suit against Tilak Raj, petitioner, for arrears of rent and ejectment. Summonses were issued to the defendant and were entrusted to Roop Narain, process-server, for service. It was reported by Roop Narain, process-server, on 31-7-1968, that the petitioner refused to accept the service of the summons and hence substituted service under Order V, Rule 17, Civil P. C. had to be effected by affixure of a copy of the summons along with a copy of the plaint on a conspicuous part of the house in which the petitioner ordinarily resided.

Upon receipt of this report on the back of the summons, the court proceeded ex parte against the petitioner on 17-9-1968, because it was satisfied that the petitioner refused to accept summons when a copy of the summons along with a copy of the plaint was tendered to him and that upon his refusal the process-server affixed a copy of the summons along with a copy of the plaint on a conspicuous part of his house as required by Order V, Rule 17, Civil P. C. Later on, the court passed an ex parte decree against the petitioner on 13-10-1968. The petitioner filed an application under Order IX, Rule 13, Civil P. C. for setting aside the ex parte decree on 29-11-1968. It was alleged in the application that he never refused to accept the summons and to acknowledge the service and that a copy of the summons was never affixed on a conspicuous part of his house.

The learned Munsiff, Jaipur City (East) made an inquiry into the matter and came to a conclusion upon evidence of Roop Narain, process-server, that the petitioner refused to accept the summons and on his refusal the process-server affixed a copy of the summons along with a copy of the plaint on a conspicuous part of his house and that the service was thus complete. It was further held by the learned Munsiff that the petitioner could not show that he was prevented by sufficient cause from appearing in the court on 17-9-1968. Consequently, the learned Munsiff rejected the petition for setting aside the ex parte decree. Aggrieved by such rejection, the petitioner preferred an appeal in the court of the District Judge, Jaipur City, wherefrom it was transferred to the court of the Additional District Judge No. 3, Jaipur City, who, after hearing the parties, dismissed the appeal and confirmed the order passed by the learned Munsiff. Hence, this revision petition.

3. I have gone through the record and heard the arguments advanced by the learned counsel for the petitioner and the non-petitioner.

4. It has been contended before me on behalf of the petitioner that both the courts below acted with material irregularity in holding that there was due service of summons on the petitioner in accordance with law. It was further argued that the process-server was bound to make a report on the back of the summons stating that be had affixed a copy of the summons along with a copy of the plaint on a conspicuous part of the house in which the defendant-petitioner ordinarily resided, the circumstances under which he did so and the name and the address of the person, if any, by whom the house was identified and in whose presence the copies were affixed.

In the instant case, according to the learned counsel for the petitioner, the process-server merely mentioned the names of two persons in whose presence the petitioner refused to accept the copy of the summons and before whom a copy of the summons along with a copy of the plaint was affixed on the outer door of his house. The addresses of those two persons, namely, Heera Lal and Radhey Shyam were not mentioned in the report for reasons best known to the process-server. The above contention is not devoid of force. Under Order V, Rule 17, Civil P. C. it is the bounden duty of the process-server to return the original summons to the court from which it was issued with a report endorsed thereon or annexed thereto stating that he has affixed a copy of the summons on the outer door or some other conspicuous part of the house in which the defendant ordinarily resides or carries on business or personally works for gain.

He is further required to state the circumstances under which he did so, and the name and the address of the person, if any, by whom the house was identified and in whose presence the copy was affixed. In the present case, the addresses of the two persons by whom the house was identified and before whom the copy was affixed were not mentioned by the process-server in his report. On account of the failure of the process-server to mention the addresses of such two persons in his report, it was not possible for the defendant-petitioner to produce them in the court to establish the real facts and to wipe out the effect of the process-server's report, which was proved by his evidence.

5. Apart from this, the evidence of Roop Narain, Process-server, is not worthy of credence, because he stated in his ex-amination-in-chief that he had gone to the house of the petitioner for service of summons on 21-7-1968 and that the petitioner refused to accept summons on that day and that upon his refusal he affixed a copy of the summons along with a copy of the plaint on the outer door of the house of the petitioner in the presence of Heera Lal and Radhey Shyam witnesses. In the report which he made on the back of the summons, the date of affixture of the copy of the summons on the outer door of the house of the petitioner is 31-7-1968. Thus, there is an irreconcilable contradiction between his report and his statement on oath relating to the date on which service of summons was effected in accordance with the provisions of Order V, Rule 17, Civil P. C.

The learned counsel appearing on behalf of the non-petitioner vehemently contended before me that this error, though apparent on the face of the record, has crept in on account of bona fide mistake committed by the learned Munsiff in recording the statement of Roop Narain process-server and that the petitioner failed to take this ground in the memorandum of appeal as well as in the memo of the revision petition. The above contention has no force, because the statement of the process-server was recorded by the learned Munsiff in the presence of the learned counsel for the parties in his own hand and that the date, i.e. 21-7-1968 is clearly mentioned therein. The statement was read over to Roop Narain and was admitted by him to be correct on the very day, i.e. on 16-2-1974.

In the absence of any material it is very difficult for me to hold that the learned Munsiff committed a bona fide error in recording 21-7-1968 as the date on which the process-server had effected the service. Although this ground was not specifically taken in the memo of the appeal as well as in the memorandum of the revision-petition, yet the defect is so glaring that it cannot be lost sight of without any reasonable explanation. Apart from this in para 10 of the memorandum of the revision petition, it has been contended that no reliance can be placed on the statement of Roop Narain if it is read as a whole. So it cannot be safely held that the petitioner failed to take this ground in the memo of the revision-petition. Consequently, I have no hesitation in holding that there was no due service of summons on the defendant in accordance with law. The ex parte decree is, therefore, liable to be set aside.

6. Hence the revision-petition is accepted, and the orders of both the courts below are set aside and the case is sent back to the learned Munsiff, Jaipur City (East) for trial of the suit in accordance with law. In the circumstances of the case, no order as to costs of this revision-petition.